DIVORCE, DIVORCE LAW

Divorce law is one of the most sensitive fields of law. As a lawyer, I have been working in this area since the beginning of my legal profession. In this field, I provide my clients with specialised and completely discreet legal aid both in simple cases, or so-called uncontested divorces where there is no need to identify the causes of breakup, as well as in cases with an international element, a domestic violence element, spurned parent syndrome, a parent who is notorious in his/her failure to pay maintenance, in cases of large property settlements, or in a number of other specific cases, which are, as a rule, disputed divorces.

If you need more detailed information about your rights, common practices and even things that are complicated for you, and how the situation can evolve, how it might work itself out, how much the whole divorce can cost, how best to agree on the custody of your children, how to begin dealing with creditors (mortgages, loans, house under construction), I will provide you with effective and efficient legal advice in this field, which will give you a better overview of the entire situation and you will leave my office “armed” with a lot of key information.

 

REGULATION OF RELATIONS TO CHILDREN, SOLE / SHARED CUSTODY

If the divorcing spouses have minor children, the court will not divorce the marriage until it is decided how the children will be looked after, i.e. which parent will have the child in his/her care and when, which parent will pay maintenance, in what amount and by when. This will also apply in the case of unmarried couples, in short, wherever there is a need to regulate relations to a minor child, whether in the area of care or maintenance, if there are more serious issues on which no agreement can be found, the court must decide. The child also has the right to see grandparents and the extended family, as dp members of the extended family with the child. The child's opinion becomes increasingly important for the court the greater is the age of the minor, which, inter alia, has been consistently confirmed by the Constitutional Court in a number of its findings, and this is already part of the law. At the same time, the authority responsible for the social and legal protection of children enters into these proceedings, as it defends the rights of the child before the court, determines the conditions for the life of minors with parents, can adopt a number of measures and its opinion is of importance for the court; it is rather rare for the court to decide in stark contrast to the opinion of the authority responsible for the social and legal protection of children.

In providing legal aid throughout the divorce proceedings, or in connection with acts following the conclusion of divorce proceedings, I try to follow the Cochem model, or Cochem practice. For more information see: https://cs.wikipedia.org/wiki/Cochemsk%C3%BD_model.

 

PRENUPTIAL AGREEMENT, QUESTIONS ASSOCIATED WITH THE EXISTENCE OF JOINT PROPERTY OF SPOUSES

The regulation of marital property law, i.e. the conclusion of a prenuptial agreement prior to a couple entering into marriage, is a sensitive topic, which it is advisable to address discretely with a lawyer for a number of other reasons than those for which the justification of a prenuptial agreement is expected. The creation of the joint property of spouses, what it will include, and what, on the contrary, will not be part of the joint property of spouses in the future, and whether the joint property of spouses will even be created during the course of the marriage, has an effect not only on property in the sense of assets, meaning what each of the spouses owns during the course of the marriage, but also on the establishment and existence of liabilities, meaning possible debts that arose prior to the couple entering into marriage, or which may arise after they enter into marriage. This regulation is also fundamental in relation to potential creditors of the husband/wife in view of the regime of debts (previously) exclusive to each of the spouses, that being not only in relation to potential creditors who existed prior to the marriage being concluded, but also those creditors who may come on the scene in the future.

Should you need to gain an insight prior to entering into marriage in this field, have signs of possible debts on the part of your fiancee, are not 100 per cent sure whether you are prepared to send a substantial part of your wage, salary, or business profit straight to an executor in the event of your spouse failing to service debt payments, please do so.

This is because, at this moment under Czech law it applies that the main 'winner' from the existence of the joint property of spouses as far as the establishment and recovery of debt is concerned, even regardless of the consent of one of the spouses to the establishment of such a debt (for example, due to a mistake made whilst driving a car not covered under compulsory third party motor vehicle insurance – typically as a result of drunk driving, negligent or by a deliberate misdemeanour or criminal offense in civil or business life, or simply due to the over-indebtness / bankruptcy of a self-employed person, 'loans' taken out behind a spouse's back - this may involve millions of crowns) is, above all, one of the spouse’s creditors, which is afforded a whole list of channels by which to subsequently recover funds from the other spouse or from property comprising part of the spouses' joint property.

 

LEGAL ADVICE CONCERNING THE DEBTS, EXECUTION AND INSOLVENCY OF A CURRENT / EX SPOUSE

One of the best forms of “collateral” for a creditor's claim against a debtor is the debtor's spouse. Are you surprised? The extensive and complicated regulation of the enforcement of a decision in the Enforcement Code, linked to the labyrinth of almost 150 amendments to the Code of Civil Procedure, both in the area of the original proceedings as well as in the area of the enforcement proceedings, combined with the transition from the 'old' to the 'new' Civil Code, Legal institutes, interwoven with relatively rich case law in the area of legal institutes, the existence of which a layperson is often completely unaware, creates a complicated environment in which an unsuspecting spouse or even a former spouse finds him/herself as a result of the debts of his/her counterpart. Often short procedural time limits, problems with the delivery and receipt of mail, passivity, or even the direct intent of one of the spouses, but often also a relatively high degree of rigour and formalism, or simply an error by a court in its legal assessment, combined with the principle that ignorance is not an excuse, may ultimately lead to the property of a previously unsuspecting spouse being placed under execution. And this can occur even months or years after the end of marriage. If you find yourself in such a situation, you must, above all, respond quickly so that you do not miss any procedural deadline. Whilst representing a client in this field of law, who is the owner of pledged property, unjustifiably 'pulled' into enforcement proceedings due to debts that he or she did not cause, I have managed to secure an important decision of the Supreme Court in a case of the substitution of a party to enforcement proceedings.

 

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JUDr. Vít Nevařil, law firm, Václavské náměstí 808/66, Praha 1, 110 00, e-mail: info@ak-nevaril.cz